A-42552, JUNE 22, 1932, 11 COMP. GEN. 495

A-42552: Jun 22, 1932

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BOARDS AND COMMISSIONS A JURY OF AWARD COMPOSED OF PRIVATE ARCHITECTS APPOINTED OR DESIGNATED BY THE ATTORNEY GENERAL TO SELECT ARCHITECTS AND/OR DESIGNS FOR FEDERAL JAILS IS A "COMMISSION. APPARENTLY WAS APPOINTED OR DESIGNATED BY THE ATTORNEY GENERAL A MEMBER OF SAID JURY TO SERVICE WITHOUT COMPENSATION. TRAVEL ORDER WAS ISSUED BY THE DIRECTOR OF THE BUREAU OF PRISONS. HIS NECESSARY EXPENSES OF TRANSPORTATION AND A PER DIEM OF $5 IN LIEU OF ACTUAL SUBSISTENCE WERE AUTHORIZED. THE TRAVELING EXPENSES WERE APPROVED BY THE ATTORNEY GENERAL UPON RECOMMENDATION OF THE ACTING DIRECTOR. REFERENCE IS MADE TO THE PROVISION ATTACHED TO THE APPROPRIATION. IS CLEARLY THAT OF THE ATTORNEY GENERAL AND SUCH GOVERNMENTAL FUNCTION MAY NOT BE DELEGATED TO ANY PERSON OR GROUP OF PERSONS OUTSIDE OF THE FEDERAL SERVICE.

A-42552, JUNE 22, 1932, 11 COMP. GEN. 495

BOARDS AND COMMISSIONS A JURY OF AWARD COMPOSED OF PRIVATE ARCHITECTS APPOINTED OR DESIGNATED BY THE ATTORNEY GENERAL TO SELECT ARCHITECTS AND/OR DESIGNS FOR FEDERAL JAILS IS A "COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY" WITHIN THE MEANING OF SECTION 9 OF THE ACT OF MARCH 4, 1909, 35 STAT. 1027, AND THE TRAVELING EXPENSES OF THE MEMBERS OF SUCH JURY MAY NOT BE PAID FROM APPROPRIATED FUNDS.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, JUNE 22, 1932:

THERE HAS BEEN RECEIVED A LETTER DATED MAY 11, 1932, FROM THE ACTING DIRECTOR, BUREAU OF PRISONS, REQUESTING RECONSIDERATION OF THE EXCEPTION, TAKEN BY THIS OFFICE IN THE PREAUDIT OF ACCOUNTS, TO PROPOSED PAYMENT OF $17.35 TO R. W. ZIMMERMAN, ARCHITECT, AS REIMBURSEMENT OF TRAVELING EXPENSES IN GOING FROM CHICAGO, ILL., TO MINNEAPOLIS, MINN., AND RETURN, DURING THE PERIOD FEBRUARY 25 TO 28, 1932, FOR THE PURPOSE OF SERVING ON AN "ARCHITECTURAL COMPETITION JURY TO SELECT DESIGN FOR THE FEDERAL JAIL AT SANDSTONE, MINN.'

R. W. ZIMMERMAN, NOT OTHERWISE IN FEDERAL EMPLOY, APPARENTLY WAS APPOINTED OR DESIGNATED BY THE ATTORNEY GENERAL A MEMBER OF SAID JURY TO SERVICE WITHOUT COMPENSATION. TRAVEL ORDER WAS ISSUED BY THE DIRECTOR OF THE BUREAU OF PRISONS, FEBRUARY 23, 1932, AUTHORIZING AND DIRECTING THIS ARCHITECT TO PROCEED FROM CHICAGO TO MINNEAPOLIS, "AND SUCH OTHER POINTS AS MAY BE NECESSARY, AND RETURN.' HIS NECESSARY EXPENSES OF TRANSPORTATION AND A PER DIEM OF $5 IN LIEU OF ACTUAL SUBSISTENCE WERE AUTHORIZED, PAYABLE UNDER THE APPROPRIATION "FEDERAL JAILS, BUILDING AND EQUIPMENT.' THE TRAVELING EXPENSES WERE APPROVED BY THE ATTORNEY GENERAL UPON RECOMMENDATION OF THE ACTING DIRECTOR, BUREAU OF PRISONS, MADE APRIL 5, 1932.

AS AUTHORITY FOR INCURRING THE EXPENSE INVOLVED, REFERENCE IS MADE TO THE PROVISION ATTACHED TO THE APPROPRIATION--- ACTS OF JULY 3, 1930, 46 STAT. 882, AND FEBRUARY 23, 1931, 46 STAT. 1328--- WHICH READS:

* * * AND THE ATTORNEY GENERAL MAY CONTRACT WITH SUCH SUITABLE PERSON OR FIRM AS HE MAY SELECT FOR THE WORK OF PREPARING PLANS, DRAWINGS, DESIGNS, SPECIFICATIONS, AND ESTIMATES FOR REMODELING AND CONSTRUCTION OF THE NECESSARY BUILDINGS.

THE DUTY AND RESPONSIBILITY OF SELECTING AN ARCHITECT, AND/OR DESIGN FOR FEDERAL JAILS REQUIRED TO BE CONSTRUCTED UNDER THE APPROPRIATION INVOLVED, IS CLEARLY THAT OF THE ATTORNEY GENERAL AND SUCH GOVERNMENTAL FUNCTION MAY NOT BE DELEGATED TO ANY PERSON OR GROUP OF PERSONS OUTSIDE OF THE FEDERAL SERVICE.

THE ACTING DIRECTOR, BUREAU OF PRISONS, SUBMITS THE FOLLOWING ARGUMENT IN SUPPORT OF THE ACTION TAKEN:

THE POWER LODGED IN THE ATTORNEY GENERAL TO SELECT A SUITABLE ARCHITECT CARRIES WITH IT BY IMPLICATION THE AUTHORITY TO DO WHATEVER IS NECESSARY AND ESSENTIAL TO ACCOMPLISH THIS ACT. IF IT WAS NECESSARY TO APPOINT A JURY OF AWARD TO ASSIST IN ACCOMPLISHING A DUTY IMPOSED BY LAW THEN THAT JURY IS AUTHORIZED BY LAW.

THE DISCRETION VESTED IN AN ADMINISTRATIVE OFFICER IN ACCOMPLISHING THE PURPOSE OF AN APPROPRIATION ACT IS NOT UNLIMITED, BUT IS CONTROLLED, NOT ONLY BY THE AMOUNT OF THE APPROPRIATION, BUT, ALSO, BY OTHER GENERAL OR SPECIFIC RESTRICTIVE STATUTES APPLICABLE THERETO. THE QUESTION FOR THE CONSIDERATION OF THIS OFFICE IS NOT AS TO THE ADMINISTRATIVE PROCEDURE ALONE BUT AS TO THE UNLAWFUL USE OF APPROPRIATED FUNDS.

SECTION 9 OF THE ACT OF MARCH 4, 1909, 35 STAT. 1027, PROVIDES AS FOLLOWS:

THAT HEREAFTER NO PART OF THE PUBLIC MONEYS, OR OF ANY APPROPRIATION HERETOFORE OR HEREAFTER MADE BY CONGRESS, SHALL BE USED FOR THE PAYMENT OF COMPENSATION OR EXPENSES OF ANY COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY, OR ANY MEMBERS THEREOF, OR FOR EXPENSES IN CONNECTION WITH ANY WORK OR THE RESULTS OF ANY WORK OR ACTION OF ANY COMMISSION, COUNCIL, BOARD OR OTHER SIMILAR BODY, UNLESS THE CREATION OF THE SAME SHALL BE OR SHALL HAVE BEEN AUTHORIZED BY LAW; NOR SHALL THERE BE EMPLOYED BY DETAIL, HEREAFTER OR HERETOFORE MADE, OR OTHERWISE PERSONAL SERVICES FROM ANY EXECUTIVE DEPARTMENT OR OTHER GOVERNMENT ESTABLISHMENT IN CONNECTION WITH ANY SUCH COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY.

THERE IS NO DISAGREEMENT WITH THE CONTENTION OF THE ACTING DIRECTOR, BUREAU OF PRISONS, TO THE EFFECT THAT A COMMISSION, BOARD, ETC., TO BE "AUTHORIZED BY LAW" DOES NOT NECESSARILY REQUIRE THAT ITS CREATION BE SPECIFICALLY PROVIDED FOR BY A STATUTE. 16 COMP. DEC. 278; ID. 424; 27 OP.ATTY.GEN. 432. HOWEVER, THERE MUST BE SUFFICIENT AUTHORITY IN GENERAL OR SPECIFIC TERMS FOR THE CREATION OF A COMMISSION, BOARD, ETC., SUCH AS AN AUTHORIZATION FOR WORK WHICH COULD BE ACCOMPLISHED ONLY BY A COMMISSION, BOARD, ETC., OR AUTHORIZATION FOR DUTIES OF SUCH A NATURE GENERALLY RECOGNIZED AS BEST PERFORMED BY A COMMISSION, BOARD, ETC.

IN THE INSTANT CASE THERE IS NOTHING IN THE APPROPRIATION WHICH WOULD AUTHORIZE OR REQUIRE THE CREATION OF A COMMISSION, BOARD, JURY, ETC., NEITHER IS THERE ANY INDICATION THAT THE CONGRESS CONTEMPLATED THAT THE SELECTION AUTHORIZED TO BE MADE BY THE ATTORNEY GENERAL WOULD BE MADE BY OR ON THE RECOMMENDATION OF A JURY OR OTHER BOARD, COMMISSION, OR SIMILAR BODY. THE DUTY AND RESPONSIBILITY OF SELECTING AN ARCHITECT, AND/OR DESIGN FOR FEDERAL JAILS, IS NOT OF SUCH A NATURE OF ITSELF AS TO JUSTIFY THE CREATION OF A "JURY OF AWARD" WITH EXPENSES TO BE PAID FROM APPROPRIATED FUNDS. ACCORDINGLY, IT IS HELD THAT THE "ARCHITECTURAL COMPETITION JURY TO SELECT DESIGN FOR THE FEDERAL JAIL AT SANDSTONE, MINN., " UNQUESTIONABLY COMES WITHIN THE TERMS ,COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY.' SEE 5 COMP. GEN. 231; ID. 417; 6 ID. 140.

YOU ARE ADVISED, THEREFORE, THAT THE REIMBURSEMENT OF TRAVELING EXPENSES OF R. W. ZIMMERMAN IS NOT AUTHORIZED FROM APPROPRIATED FUNDS AND THE VOUCHER MAY NOT BE CERTIFIED BY THIS OFFICE FOR PAYMENT.